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Court of Appeal Sides With Defendant Over Pacifica Marijuana Bust

Herb Fellow

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The First District Division Five California Court of Appeal ruled Jan. 11 that the warrantless entry, search and seizure of evidence in a Pacifica apartment are not allowable based solely on the observance of a small amount of marijuana.

The Court of Appeal overturned a San Mateo County Superior Court's ruling that had permitted the search and denied the defendant's motion to suppress evidence discovered by police.

The Court of Appeals case was heard last October in an unusual venue Westmoor High School.

In March 2005, Pacifican John Hua was in his apartment with five people when police arrived in response to a complaint about noise. The Pacifica police officers smelled marijuana from the outside walkway and observed through the blinds one person smoking marijuana.

Without a warrant and against Hua's desires, the officers told Hua they wanted to enter the apartment, telling Hua they were concerned about the destruction of evidence. Hua eventually stepped aside and allowed the officers to enter. They discovered a smoke-filled room containing the odor of marijuana and two blunts (remains of a joint rolled in cigar paper). No one had a medical marijuana card.

After bodily searching the people who were in the living room and discovering no contraband, the officers made a "protective sweep" through the rest of the apartment. A protective sweep is permitted if exigent circumstances exist, or if a police officer feels his/her life may be in danger from something lurking in a back room. The officer who conducted the search, Darcie Mix, testified in court that it was "standard practice" for her to conduct a protective sweep.

During the search, police found 46 marijuana plants growing in dirt-filled tubs, planter trays, potting soil, plastic baggies, liquid plant food, "Cannabis Grow Bible" and a digital scale. No drawers were opened. A cane sword was found in the living room. Hua told officers to look in a safe in a bedroom for a letter that permitted him to grow marijuana. Mix found that letter in an open safe, but it named a person not present in the apartment. All these items were seized and taken to police headquarters, where Hua was read his rights and agreed to be interviewed.

At police headquarters, Hua said he planned to use the marijuana he grew for wallpaper. However, there were no marijuana leaves used as decoration in his apartment. He admitted to police he smoked marijuana with his friends, but denied selling it.

The deputy attorney general prosecuting the case justified the search by saying the officers believed there was the possibility of a felony being committed in a back room in one of two ways by furnishing marijuana to others, punishable by up to four years in jail if in sufficient quantities, or by possessing more than 28.5 grams of marijuana, punishable by a possible one-year jail sentence.

As the trial court permitted the police warrantless entry, search and seizure, Hua pleaded no contest to cultivation of marijuana and possession of a cane sword. He served 60 days in jail.

The court of appeal reversed that finding, effectively disallowing the entry and search, suppressing the evidence found in the apartment and overturning Hua's conviction. The court of appeal found the search to be unjustified because exigent circumstances did not exist for a protective sweep, nor was there reason to believe a felony was being committed.

"While we accept the reasonable possibility that there was more marijuana in the apartment than the two blunts observed by the officers, it is mere conjecture to conclude that there was enough to constitute a jailable offense .Even had the officers observed one individual in the apartment furnish another with marijuana, the officers did not have probable cause to believe that a jailable offense was being committed at the time they entered .California has chosen to treat the offense of possession of less than 28.5 grams of marijuana as a minor offense that is nonjailable even for repeat offenders ..One consequence of that decision is to preclude officers who see this offense being committed from entering a home without a warrant or consent to seize the offender or the contraband, in order to prevent the imminent destruction of evidence of the offense," the appellate opinion written by Associate Justice Mark Simons reads.

The decision did not surprise Pacifica Police Sergeant (promoted to Captain effective Saturday) Dave Bertini, who was present at Hua's apartment the night of the incident.

"I'm not surprised by the ruling. Being a teacher of search and seizure, I knew there were some issues in this case. It's always a learning experience," Bertini said.

Hua's attorney, Gordon S. Brownell, helped draft the 1975 California legislation that successfully decriminalized possession of small amounts of marijuana.

"The Court of Appeal construed the law completely consistently in my opinion with what the law was intended to do, which was to make simple possession of an ounce or less a non-arrestable, non-jailable offense. Under the decisions cited by the Court of Appeal, police cannot enter a home without a search warrant for an offense that does not carry a jail penalty. The Court of Appeal got the state statute correct and the Fourth Amendment correct. It was a very good decision. The Fourth Amendment has lost a lot of its power and impact in recent years with a lot of conservative court decisions on the U.S. Supreme Court and the California Supreme Court level. This is a very important decision and something that I have received emails from attorneys across the country responding to it. It is very significant. This is a very important constitutional principle," Brownell said.

Deputy Attorney General Ronald Niver said he recommended his office appeal the decision to the California Supreme Court.

"It was a very myopic view of the facts. It stands to reason the person who is smoking marijuana would have it elsewhere. It seems to me that the police officers who perceived a crime being committed in their presence and in plain sight should be allowed under the Fourth Amendment to take steps to investigate and apprehend those who are committing the crime. By opening those blinds, they have surrendered any expectation of privacy. The officers did no more than what was reasonable," he said.

Rudy Kwan, an Oceana High School senior, and one of the Advanced Placement Government students who attended the Court of Appeal hearing at Westmoor, agreed.

"To protect others and stop those who are committing an illegal act, the warantless entrance to Hua's home was necessary because if the police had never entered the home, the marijuana that was growing hidden inside Hua's could have been sold on the streets. The entrance into the home stopped that. Marijuana is illegal and law enforcement should have the right in any means necessary to stop any illegal use and growth of this drug. It was not at all wrong for the Pacifica police to enter Hua's home because firstly, there was a complaint, and secondly, the people in the home had marijuana. Regardless of the amount of marijuana, it was an illegal act and therefore, the person in this case had to face the consequences," Kwan said.

Kwan's classmate Tiffany Hu saw the warrantless search as an invasion of privacy.

"I think it is a fair decision that Hua only need to pay a maximum of $100 fine, since the police did not have a warrant, the cane sword and marijuana plants that they found in Hua's house would be considered as illegal evidence. The police should always handle matters according to the procedure or else it is violating the law and in this case it is violating the right of privacy," Hu said.

Fellow student Ryan Lagandaon concurred.

"I believe that it is fair to say that peace keepers are not permitted to enter private property based on the interference that illegal activity may be going on. In relation to the court case in 2005, the police officers were only supposed to investigate a loud noise complaint, and had no right to enter the house because they smelled what seemed to be marijuana. They also did not have the consent of the inhabitants and had no search warrant. The police officers acted on their inference and did not have concrete evidence to justify their actions before they entered. Although it would seem logical for a peacekeeper to prevent an illegal act, it is unconstitutional to invade one's privacy. Now maybe under extreme circumstances such as suggestion of domestic violence, or rape; then I feel that the peacekeepers should intervene, but do the peace keepers still do have that right to enter the property? I believe that the appeal court ruling was critical, but fair," he said.

Oceana student Reza Mostasavi agreed with the decision, as well.

"I think it's unconstitutional to not have a warrant and search the apartment anyway. It's not like they are smoking the marijuana in public and becoming a threat to the public. Instead they are smoking it privately and aren't disturbing anyone by being under the influence. Obviously it's wrong to do drugs in the first place, but if they are doing privately and the police have no warrant to search the apartment for any cause then it's not right," he said

Source: The Pacifica Tribune
Copyright: 2008, Pacifica Tribune
Contact: Jane Northrop STAFF WRITER
Website: Pacifica Tribune Online - Court of Appeal sides with defendant over Pacifica marijuana bust
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